Gardner v Lucas

JurisdictionEngland & Wales
Judgment Date21 March 1878
Docket NumberNo. 10.
Date21 March 1878
CourtHouse of Lords
House of Lords

Ld. Chancellor (Cairns), Ld. Hatherley, Ld. O'Hagan, Lord Blackburn, Lord Gordon.

No. 10.
Lucas, &c.

WritAuthenticationAct 1696, c. 15.

WritConveyancing and Land Transfer (Scotland) Act, 1874, 37 and 38 Vict. c. 94, sec. 39.

StatuteConstructionRetrospective effect.

A deed dated prior to 1874, consisting of seven pages, written bookwise on two sheets of paper, was signed by the granters on the seventh page only, the other pages being initialed by them. Held (aff. judgment of First Division) that the deed was not probative under the Act 1696, in respect that each page was not signed by the granters.

Observed that the provisions of the Act 1696, with regard to the execution of deeds written bookwise were the conditions on which alone validity was conferred upon such deeds.

Section 39 of the Conveyancing Act, 1874, enacts that no deed subscribed by the granter, and bearing to be attested by two witnesses subscribing, shall be deemed invalid or denied effect because of any informality of execution, but the burden of proving that such deed was subscribed by the granter and by the witnesses shall lie upon the party using the same. Held (aff. judgment of First Division) that this enactment did not apply to deeds executed prior to 1st October 1874, the date when the Act came into operation.

Observations on the cases in which statutory enactments should be construed retrospectively.

Ante, vol. iv. p. 885, and present vol., Court of Session reports, p. 638.

James Gardner, the defender in the first action, reported ante, vol. iv. p. 885, and the pursuer in the second action, reported in the Court of Session reports in the present volume, p. 638, appealed against the judgments in both actions, but the only points insisted in at the bar arose upon the appeal against the judgment in the second action, the appellant maintaining the validity of the minute of agreement of 7th June 1873.

The questions raised were (1) whether the agreement was valid under 1696, c. 15, the first six pages not being signed with the names of the granters, but being merely initialed; (2) whether, if the deed was invalid under that Act, the effect of the 39th section of the Conveyancing Act of 1874 was retrospective, and had the effect of validating deeds executed prior to its being passed.

Lord Chancellor.My Lords, the only questions upon these two appeals which have been opened for your Lordships consideration, and the only questions, as it is admitted at the bar, which your Lordships have to decide, are questions which, at first sight, appear to be of very considerable technicality, but are such that the reasoning which your Lordships must apply to them must be in consonance with the practice which has hitherto prevailed in Scotland and with the decisions both of the Scotch Courts and of this House. The two questions are, first, whether, in the instrument before the House, which we should call an agreement for a lease, there has been that compliance with formalities which would make it a probative instrument, and, in the second place, whether, if that is not the case, if it was not a probative instrument as the law stood before the year 1874, there is any enactment in the Act which was passed in that year which would remedy the defects in the instrument.

The instrument in question is written, as the term is, bookwise, and extends over a number of pages. It is signed by the persons who were charged with the responsibility of the instrument at the end with the names written at full length, the initials only of the persons so signing being appended in the margin to each of the preceding pages; and the question is whether the execution of an instrument in that way is a sufficient compliance with the statute of 1696.

Now, my Lords, the statute of 1696 introduced by way of privilege a mode of execution of deeds and similar documents which had not prevailed and was not sufficient in Scotland up to that time. The statute proceeds upon the recital that the King, understanding the great trouble and inconvenience the lieges are put to in finding out of clauses and passages in long contracts, decreets, dispositions, extracts, transumpts, and other securities, consisting of many sheets battered together, which must be either folded or rolled up, doth, for remeid thereof, with advice and consent of the Estates of Parliament, statute and ordain that it shall be free hereafter for any person who hath any contract, decreet, disposition, or other security above mentioned to write, to choose whether he will have the same written in sheets battered together as formerly, or to have them written by way of book in leaves of paper, either in folio or quarto; in other words, he may continue, if he pleases, to resort to the old method of writing the instrument upon a roll formed by sheets battered together, the name to be written at the point of juncture, or he may adopt this new mode, writing the instrument by way of book, in leaves of paper either in folio or quarto, providing that if they be written bookways every page be marked by the number, first, second, &c., and signed as the margins were before, and that the end of the last page make mention how many pages are therein contained, in which page only witnesses are to sign in writs and securities when witnesses are required by law; and which writs and securities being written bookways, marked and signed as said is, his Majesty, with consent aforesaid, declares to be as valid and formal as if they were written on several sheets battered together and signed on the margin according to the present custom.

From the cases which were cited at your Lordships bar it undoubtedly appears that up to the year 1696 the general custom was to sign both at the points of junction and at the end with the full name of the person signing, for the fact that that was the custom is proved by the cases which were cited by way of exception to the general rule. Those were cases which shewed that, in particular instances, where, for example, a person was in the habit of signing with initials, or where, not being able to write, he was obliged to sign with a mark, an exception might be made in favour of such persons and the full signature would be dispensed with. But, my Lords, I asked, and asked in vain, the learned counsel, who have examined every authority upon the point, whether there was any authority which shewed that, either before the statute with reference to the form of deeds then in use or since the statute with reference to the new mode that is provided by the statute, this ever had been supported, viz., a deed or a writing executed at the end by a person with his full Christian and surname, thereby shewing that he could write, and was in the habit of writing his name at length, and, at the same time, in the margin affixing not his full name, but either a mark or his initials. My Lords, no such case has certainly been cited.

Your Lordships have here the unanimous opinion of the learned Judges in the Courts of Scotland that the execution of a deed in that form would not be within the words of the statute which I have read, and your Lordships would, in regard to a matter of practice with reference to the form of execution of a written instrument in Scotland be slow to differ from the unanimous opinion of the learned Judges. But I own that, independent of such reluctance to come to a different decision, it appears to me the grounds of that decision are entirely right. I think the words of the statute are not complied with unless that which is the proper signature at the end is also appended by way of signature to the separate leaves. If, in the case of any particular person, the proper signature at the end be a signature by way of mark or by way of initial, then that may also serve as the proper signature upon each separate page; but, if the proper signature at the end be a signature at full length (and the persons signing the writing in question here shew that that was their opinion of their signature, and their habit of signature), then the same signature must, as it seems to me, be found on each individual page. So much, my Lords, for the first question which comes before you.

My Lords, the second and only other question is as to the effect of the Act of 1874. My Lords, upon that I must say that I think there is considerable foundation for the elaborate examination which the learned counsel at the bar made of the different sections of that Act. No doubt there is, with regard to some of its sections, a very clear statement that they shall apply only to instruments written after the passing of the Act; and, with regard to other sections there is an equally clear statement that those sections shall apply to things done both before and after the passing of the Act; and there is a third class of cases, of which the 38th and 39th sections are examples, in which the Act contains no clear and explicit statement of whether it is to be retrospective, or merely to be prospective. But, my Lords, in a case of that kind your Lordships have, to examine the subject-matter of the enactment of the particular section which you have to construe, to bear in mind the effect of a construction which would make it retrospective, and to ask yourselves whether it is to be supposed that that construction was intended by the Legislature to be given to it. Your Lordships have further to guide and direct you the observations which were made in. this House in the case last referred to at the bar, the case of Urquhart v. UrquhartUNK,1 that, in. a matter of this nature, any Court will be slow to construe an enactment as retrospective, and, thereby, as disturbing existing rights, unless Parliament has clearly said that the enactment is to be construed retrospectively.

Now, my Lords, in order to determine whether the 38th and 39th sections are or are not retrospective your Lordships must bear in mind that the effect of these sections is...

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